The current analysis describes the legislative procedure of the European Union, the way how sources of Union law, the different Union acts are being adopted. Understanding the process is very important to analyse cases like the current so-called “migration package”, as it produces all the typical and interesting signs of an EU legislative process, and is also being followed by all kinds of misunderstandings and confusions as many political actors have strong interests related to that. However, we are not going to focus on the texts of these laws being formed right now (or on the differences of positions of the various actors), we will deal with those and the subject of migration in a later analysis dedicated exclusively to that.
The law-making process of the European Union
The legislative process, the way how the European Union makes laws (regulations, directives or decisions) is a complex procedure involving all three major institutions of the EU. There are simplifying political messages out there which are – as usual – not true. Some of the common misunderstandings are the following: the European Commission (“Brussels bureaucrats”) makes all the decisions over the heads of the member states and the people; all decisions are being made with the agreement of all of the member states; all EU laws are adopted by the European Parliament now, so member states’ interests are washed away in a growing “federalisation” of Europe – actually, none of these are true. The reality is that the legislative process tries to strike a delicate balance between sovereignty of member states and the “common” interests of the whole community of the member states, while giving weight to the representatives of the European electorate.
As a result of this, all the three main EU institutions are involved in the lawmaking procedure: the European Commission, which generally represents the interests of the Union as a whole and is responsible for creating initiatives for EU laws; the European Parliament, which represents the EU citizens being directly elected by them; and the Council of the European Union (ministerial level), representing the governments of the individual member states.
The relationship of these institutions have changed during the years. The most significant change is in the growth in the power and influence of the European Parliament, starting from the first direct elections of its members in 1979. As a result of that, the Parliament has become a real actor: before that, its role and participation in the lawmaking of the community was merely symbolic and irrelevant (hence its name: “Consultation Procedure”). After that, as a result of a constant political development, the current rules, engraved in the current text of the founding treaties have been evolved, making the European Parliament an equal co-legislative organ, together with the Council under the so-called “co-decision” procedure, officially called the “Ordinary Legislative Procedure”, applied today for the vast majority of Union legislation. Consultation procedure is still being applied in some fields, where the European Union does not have exclusive competences (e.g. taxation).
The ordinary legislative procedure
According to the current rules (mostly being the same from the very beginning of the European integration), it is the task of the European Commission to propose new laws, which is a very important role in forming the European Union, even if it only means the creation of proposals for the legislative organs. And while the Commission is not a legislator within the EU, having the exclusive right of initiative, it is still an inevitable actor. Every initiative to legislation has to come from the European Commission, even if the “idea” comes from a member state, member of the European Parliament or anybody else, including individual citizens of the EU. One of the reasons the President of the European Commission participates in the meetings of the European Council (meaning the highest level political meetings of heads of states and governments of the member states) is to put him/her to a close understanding of the strategic decisions of the member states, necessary to form proposals which will pass the Council (where the ministers, subordinates of these leaders are casting their votes on behalf of their respective states). Article 225 of the Treaty on the Functioning of the EU regulates the process of how the European Parliament can “initiate initiatives” with the European Commission, which is not under any obligation to do so. Finally, the Lisbon Treaty has introduced the so-called “European Citizens’ Initiative” as a way to channel initiatives from the public ( Art. 11 Para 4 of the Treaty on the European Union ), but again, that does not put any obligation on the Commission.
As the legislative organs of the European Union are the European Parliament and the Council of the European Union, those have the power to decide about Union legal acts, based on the initiatives of the European Commission – and as in most cases both of these two organs have to decide about those, they are called “co-legislators”. The legislative procedure starts with a legislative proposal from the European Commission, and consists of – in the worst case – up to three stages, called “readings”, but it is possible – and usually desirable – to agree on a joint text as soon as possible, possibly already at the first reading.
The rules of the procedure are described under Article 294 of the Treaty on the Functioning of the European Union . The enclosed infographics help to better understand the procedure.
First reading
The first reading starts with the European Parliament and the Council receiving and examining in parallel the proposal from the European Commission. The Parliament has to act first, voting about the proposal by a simple majority (meaning majority of the votes of members of the European Parliament present). Its options are: adopting the text without amendments or proposing amendments to it. After this, the Council has to decide. Its options are: accepting the position of the European Parliament (which had accepted the proposal of the Commission without or with amendments), in this case the act is adopted in the form the Parliament has adopted it, and the procedure is finished. Or the Council may propose its own amendments, in this case it has to refer it back to the European Parliament, starting the second reading.
It is very important to stress – as it has serious practical implications – that neither the Parliament nor the Council is subject to any time limit by which it must conclude its first reading – this gives possibility to various political manoeuvring, as we are going to see it.
Second reading
The second reading in the ordinary legislative procedure follows a similar logic and pattern as the first one, with some differences related to voting rules, and what is very important, with deadlines.
The European Parliament has to vote on the amended proposal communicated to it by the Council, but this time not with simple, but by an absolute majority (currently meaning 353 out of the possible 705 votes). If it rejects it, the legislative procedure is over with the proposal being rejected. If it accepts it, or fails to vote or react to it within a three months deadline (extendable by one month), the proposal is adopted with the amendments of the Council, and the legislative procedure is finished. A third option for the Parliament is to propose amendments to the proposal, in this case it communicates those to the Council, which is under the same deadline to bring its own decision: accepting the Parliament’s amendments and adopting the act (thus concluding the procedure) or deciding about not accepting all the amendments adopted by the Parliament during the second reading.
If this ever happens, that is the sign of something being seriously derailed in this process.
Conciliation and third reading
The situation in this case is being taken to “conciliation”, meaning a special process during which the various actors involved in the legislative procedure get the chance for a closer, more direct discussion of the matter, trying to find the reason for inability to come to consensus. A so-called “Conciliation Committee” is being formed for closer negotiations between the two co-legislators, with the objective of reaching an agreement. The Committee is composed of the members of the Council and an equal number of members representing the European Parliament. The Commission is also represented in the proceeding with the task of taking necessary initiatives to reconcile the positions of the European Parliament and the Council.
The goal of this work is to adopt a “joint text” within the time limit of six weeks (extendable with two weeks) on the basis of the second reading positions of the European Parliament and of the Council. It has to be adopted by a qualified majority of the members of the Council and by a majority of the members representing the European Parliament. If this joint text is not adopted within the deadline, the legislative proceeding is over and the proposed Union act is deemed not to have been adopted.
The joint text adopted by the Committee has to be then approved by both the European Parliament (this time with a simple majority) and the Council. Both of those have six weeks for that (extendable with two weeks). If any of the two fails to do so, the proposed act shall be deemed not to have been adopted. If both of those approve it within the deadline, the act is adopted.
The “interinstitutional trilogue”
There is one very important practical phenomenon related to the EU legislative process, the importance of which is easy to understand after seeing how lengthy and complex it may develop: the so-called “interinstitutional trilogue”, which aims to accelerate and streamline the long process described above. It has become a standard practice for the adoption of EU laws and have seriously contributed to the fact that the number of proceedings concluded during the first reading or an early second reading has grown significantly, while in the last parliamentary cycle (2014-2019) none of them has gone to conciliation, thus speeding up the process.
The “interinstitutional trilogue” makes it possible for the co-legislators to reach an agreement at any stage of the legislative procedure even before commencing their formal votes. It means that differences in positions surface before they become “live” and the institutions can work out their differences in a timely manner. The negotiations between the institutions take the form of tripartite meetings (hence the name “trilogue”) between the European Commission, the European Parliament and the Council of the European Union, each represented by their appointed negotiators acting under the mandate given to them under the rules of their respective institutions, which previously determine their positions on the given proposal.
Quite often the votes about those positions get confused with the actual votes by the media and some political actors, leading to misunderstandings in the wider public.
These trilogue meetings can be organised at any stage of the legislative procedure but most of those are really relevant during the first reading period and this is the time when the institutions are not working under deadline (and it is not rare, depending on the political weight of the question that even a meeting of the European Council is organised so that the highest-level political leaders can address the question). The meetings are chaired by the institution hosting the meeting (i.e. either the Parliament or the Council), and they offer opportunity to the two other institutions to explain their positions and develop debates. The European Commission acts as a mediator with a view to facilitating an agreement between the co-legislators. The most important task of the delegation of the three institutions is to develop a compromise on the debated questions to make sure that the legislative process is not blocked by some unknown, unforeseen difference of positions.
The agreements reached during the trilogue meetings are of course informal and not binding per se, but after being approved by the formal procedures applicable within each of the two institutions, they serve as a basis of their vote.
Practicalities related to the ordinary legislative procedure
After the successful conclusion of the legislative proceeding, after the European Parliament and the Council has adopted the new laws (at any of the readings), the European Commission and the member states have to execute them. The Commission ensures that the laws are properly applied (in the case of directly applicable acts like regulations) and also implemented into domestic laws, (in the case of directives), if needed.
All through the first and second readings, the Council has to vote with a qualified majority. There is one exception from this rule: all proposed amendments to the Commission’s proposal have to be communicated to it, and the Council has to act unanimously on any amendments on which the Commission has delivered a negative opinion. This means that veto power generally does not apply to legislative procedure, except for this situation.